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AMERICAN COMMERCIAL
LIABILITY INSURANCE COMPANY

v.

AAGESON THIBO AGENCY, et
al

No. 191342

November 7, 1997

Ingham Circuit Court

LC No. 91-069270-CR

AMERICAN COMMERCIAL LIABILITY INSURANCE COMPANY and INSURANCE
COMMISSIONER,

Plaintiffs-Appellants,

v

AAGESON THIBO AGENCY, et al,

Defendants-Appellees.

Before: Michael J. Kelly, P.J., and Wahls and Gage, JJ.

PER CURIAM.

In this action to recover insurance policy commissions paid to
defendants, plaintiffs American Commercial Liability Insurance
Company (ACLIC), in liquidation, and the insurance commissioner,
in his capacity as liquidator, appeal as of right from the Ingham
Circuit Court’s order granting summary disposition to defendants
pursuant to MCR 2.116(C)(7). The court applied the two-year
statute of limitations set forth in MCL 500.8124(2); MSA
24.18124(2) and found that plaintiffs’ claims were time-barred.
We affirm.

Pursuant to his authority under chapter 81 of the insurance
code governing the supervision, rehabilitation, and liquidation
of insolvent insurance companies, MCL 500.8101 et seq.;
MSA 24.18101 et seq., the insurance commissioner commenced
liquidation proceedings against ACLIC in Ingham Circuit Court.[1] The
court ordered ACLIC into liquidation on March 2, 1992. In
February and March of 1994, plaintiffs filed complaints against
defendants, the former agents of ACLIC, claiming that the
commission payments made to defendants during the year preceding
the order of liquidation constituted preferential transfers
recoverable under MCL 500.8128; MSA 24.18128. In June 1994, the
Legislature amended the preference provisions of the insurance
code to expressly exempt agents’ commissions from recovery as
preferential transfers in proceedings commenced after January 1,
1990.[2]On November 18,
1994, plaintiffs moved to amend the complaints. Following the
trial court’s grant of leave to amend, plaintiffs filed amended
complaints on February 7, 1995, in which they stated that their
actions to recover the commission payments were being brought
pursuant to MCL 500.8121(1); MSA 24.18121(1) and MCL 500.8133;
MSA 24.18133.

MCL 500.8121(1); MSA 18121(1) grants the insurance
commissioner broad powers, in his role as liquidator of an
insurance company, including the power to "collect all debts
and money due and claims belonging to the insurer, wherever
located." MCL 500.8133(1); MSA 24.18133(1) provides in
pertinent part:

An agent, premium finance company, or any other person, other
than the insured, responsible for the payment of a premium held
by him or her shall be obligated to pay any unpaid earned premium
due the insurer at the time of insolvency. The liquidator shall
also have the right to recover from that person any part of an
unearned premium that represents that person’s commission. . . .

The liquidator may, upon or after an order for liquidation, within
2 years or such time in addition to 2 years as applicable law may
permit, institute an action or proceeding on behalf of the
estate of the insurer upon any cause of action against which the
period of limitation fixed by applicable law has not expired at
the time of the filing of the petition upon which the order is
entered. (Emphasis added.)

The court determined that because plaintiffs did not file
their amended complaints within two years of the liquidation
order, the claims were time-barred. In granting summary
disposition to defendants, the court stated:

It’s my opinion that the cause of action in this matter was
created by the statute. And that the agents should have been sued
within the two-year period, otherwise, I can’t imagine any cases
where there would be a two-year period for this statute to have
any effect. There was no six-year period running. There was no
period created or anything other than the two-year period created
here.

* * * * *

[T]his action was created solely by the actions of ACLIC in
going insolvent. . . . . This was not an independent personal
action. . . . It is still a statutorily created action that the
two years applies to. If they had already been suing these people
for returning a premium because of some other breach, sure,
you’ve got your time. But you don’t have that here. . . . That’s
the court’s opinion on this.

This Court reviews a circuit court’s grant of summary
disposition de novo. Citizens Ins Co of America v Buck,
216 Mich App 217, 221; 548 NW2d 680 (1996). Whether a cause of
action is barred by the statute of limitations is a question of
law that is reviewed under the same standard. Moll v Abbott
Laboratories, 444 Mich 1, 26; 506 NW2d 816 (1993).

Plaintiffs present two distinct arguments to preserve their
claims. First, they contend that MCL 500.8124(2); MSA 24.18124(2)
is merely a tolling statute, which extends any open statute of
limitations for a period of two years and preserves any actions
that may have been on the verge of being barred when the order of
liquidation was entered. In other words, plaintiffs argue, the
Legislature intended that § 8124 always give a liquidator more
time to bring a claim on behalf of the liquidating insurer, and
the section does not itself serve as a separate statute of
limitations.

Next, plaintiffs contend that one of three alternative
theories of recovery are "applicable law" within the
meaning of MCL 500.8124(2); MSA 24.18124(2) and that longer
limitations periods therefore should be applied to their claims
against defendants. They argue that their claims were actually
one of the following: contract actions subject to the six-year
limitations period provided in MCL 600.5807(8); MSA 27A.5807(8);
personal actions with a six-year limitations period as provided
in MCL 600.5813; MSA 27A.5813; or claims to enforce a
noncontractual money obligation founded upon a judgment, for
which MCL 600.5809; MSA 27A.5809 provides a ten-year limitations
period.

We disagree with each of plaintiffs’ arguments and do not find
that any of the suggested alternative theories of recovery apply
to plaintiffs’ claims. We hold that the Ingham Circuit Court
properly determined that the two-year statute of limitations
provided by MCL 500.8124(2); MSA 24.18124(2) barred plaintiffs’
claims against these defendants.

Initially we reject plaintiffs’ argument that this statute is
merely a tolling provision that allows two years to be added to
any other applicable statute of limitations. The primary goal of
judicial interpretation of statutes is to ascertain and give
effect to the intent of the Legislature. Farrington v Total
Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The
Legislature is presumed to have intended the meaning it plainly
expressed. Institute in Basic Life Principles, Inc v
Watersmeet Twp (After Remand), 217 Mich App 7, 12; 551 NW2d
199 (1996). The first criterion in determining intent is the
specific language of the statute. House Speaker v State
Administrative Board, 441 Mich 547, 567; 495 NW2d 539 (1993).
MCL 500.8124(2); MSA 24.18124(2) states that claims in a
liquidation proceeding must be brought "within 2 years"
or "such time in addition to 2 years as applicable law may
permit." This language plainly provides a limitations period
for actions brought under the insurance code of two years but
acknowledges that another limitations period, provided by other
applicable law, may apply to claims brought during a liquidation
proceeding. In other words, the Legislature intended that § 8124
act as both a two-year statute of limitations for actions brought
pursuant to chapter 81 of the insurance code and as a tolling
provision for actions in which applicable law provides a
different limitations period.

We further find that plaintiffs’ claims against defendants
clearly fall within the ambit of MCL 500.8124(2); MSA
24.18124(2). In determining whether an action is of a type
subject to a particular statute of limitations, we look at the
basis of the plaintiffs’ allegations. Aldred v O’Hara-Bruce,
184 Mich App 488, 490; 458 NW2d 671 (1990). The type of interest
allegedly harmed is the focal point in determining which
limitation period controls. Id. Statutes that relate to
the same subject or share a common purpose are in pari materia
and must be read together as one law, even if they contain no
reference to one another and were enacted on different dates. State
Treasurer v Schuster, 215 Mich App 347, 352; 547 NW2d 332
(1996). Plaintiffs brought their causes of action against
defendants pursuant to the insurance commissioner’s authority
under chapter 81 of the insurance code, which governs the
supervision, rehabilitation, and liquidation of insurance
companies. The interest allegedly harmed was that of the
liquidator in marshaling the assets of the corporation in
liquidation. Reading the statutes in chapter 81 together, we find
that the Legislature plainly intended the two-year statute of
limitations set forth in MCL 500.8124(2); MSA 24.18124(2) to
apply to plaintiffs’ claims.

Moreover, it is reasonable to conclude that, in the present
case, the authority of the liquidator to recover commissions
arises solely out of MCL 500.8133; MSA 24.18133. We reject
plaintiffs’ argument that their claims to recover commissions
paid to defendants are contractual in nature. The standardized
contract between ACLIC and its former agents contains no
provision whatsoever requiring agents to return the unearned
portion of their commissions. Although plaintiffs argue that the
parties’ course of dealing resulted in a modification of that
contract such that agents typically returned the unearned portion
of the commission in the event of a policy cancellation, there is
no contractual interest declared in the complaint, nor were any
of the elements of breach of contract alleged. Rather, the
complaint plainly and solely alleges a cause of action brought
pursuant to Chapter 81 of the insurance code. Therefore, the
six-year statute of limitations for contract actions set forth in
MCL 600.5807(8); MSA 27A.5807(8) does not apply to plaintiffs’
claims and does not extend the limitations period. Id. at
490-491; Barnard, supra at 378.

Plaintiffs also argue that their claims are subject to the
general six-year limitations period for personal actions set
forth in MCL 600.5813; MSA 27A.5813, which provides: "All
other personal actions shall be commenced within the period of 6
years after the claims accrue and not afterwards unless a
different period is stated in the statutes." Our Supreme
Court expressly characterized MCL 600.5813; MSA 27A.5813 as the
statute of limitations applicable to personal actions "not
otherwise provided for" in Detroit v Walker, 445 Mich
682, 705; 520 NW2d 135 (1994). Plaintiffs cannot rely on the
six-year limitations period provided in this statute because MCL
500.8124(2); MSA 24.18124(2) provides a directly applicable
statutory limitation period for claims brought pursuant to
chapter 81 of the insurance code.

We note that a panel of this Court held that the six-year
period of limitations of MCL 600.5813; MSA 27A.5813 applied to a
no-fault insurer’s counterclaim against chiropractors to recover
overcharges and reimbursements for charges outside the scope of
chiropractic, rather than the one-year statute of limitations
provided in the no-fault act for an action to recover benefits
paid under the act. Hoffman v Auto Club Ins Ass’n, 211
Mich App 55, 115-117; 535 NW2d 529 (1995). However, we find the
present case distinguishable from Hoffman, in which this
Court determined that the no-fault statutory limitations period
applied only to actions for the recovery of benefits payable
under the act and the moneys sought to be recovered were not
benefits payable under the act. Id. at 116. In contrast,
MCL 500.8133; MSA 24.18133 of the insurance code expressly
authorizes an action by the liquidator to recover the unearned
portion of paid commissions. The two-year limitations period
provided in the insurance code is thus directly applicable.

Moreover, in other authority cited by plaintiffs to support
their contention that the six-year limitations period provided in
MCL 600.5813; MSA 27A.5813 applied to their claims, there was
also no other directly applicable statutory limitations period.
For example, plaintiffs note that a panel of this Court held in Great
Lakes Gas Transmission Co v State Treasurer, 140 Mich App
635; 364 NW2d 773 (1985), that collection actions brought by
government departments and officers can be personal actions. Id.
at 650. However, the Great Lakes panel also expressly
found that the parties could rely on MCL 600.5813; MSA 27A.5813
only because the Legislature had "abandoned any particular
limitation period in the Business Corporation Act." Id.
Other cited case law demonstrates that MCL 600.5813; MSA 27A.5813
applies to a claim only when there is no directly applicable
statute of limitations. Therefore, because MCL 500.8124(2); MSA
24.18124 is a directly applicable to plaintiff’s claims, their
arguments in this regard fail.

Finally, plaintiffs’ reliance on the ten-year limitations
period for actions to enforce noncontractual money obligations
based on a judgment or decree is also misplaced. MCL 600.5809(3);
MSA 27A.5809(3) provides that "the period of limitations is
10 years for actions founded upon judgments or decrees rendered
in a court of record . . . from the time of the rendition of the
judgment." Plaintiffs contend that the rights and
liabilities of the parties became fixed when the liquidation
order was entered, and defendants therefore became obligated to
reimburse plaintiffs for unearned commissions as of that date. We
disagree. There has been no finding by a court of law that
defendants owed plaintiffs any money. The order of liquidation
merely provided the liquidator with the authority to pursue
certain actions on behalf of the liquidating insurer. Therefore,
the statutory limitations period of MCL 600.5809(3); MSA
27A.5809(3) is inapplicable because there was no money judgment
against defendants.

In summary, we find that MCL 500.8124(2); MSA 24.18124(2)
operates as both a two-year statute of limitations for actions
brought pursuant to chapter 81 of the insurance code and as a
tolling provision for actions brought by the insurance
commissioner on behalf of a liquidating insurance company
pursuant to other applicable law. Plaintiffs’ claims against
defendants, brought pursuant to MCL 500.8121(1); MSA 1812(1) and
MCL 500.8133; MSA 24.8133, fall clearly within the ambit of the
two-year limitations period. We are not persuaded by plaintiffs’
attempts to characterize the claims as actions on a contract,
personal actions, or claims to enforce noncontractual money
obligations founded upon a judgment. The Ingham Circuit Court did
not err in granting summary disposition to defendants.

For delinquency proceedings commenced after January 1,
1990, and notwithstanding any other provision of law,
commissions paid to insurance agents or agencies by an
insurer in the ordinary course of business at a time when the
insurer was authorized to transact such business are not
recoverable unless the agent or agency is affiliated with the
insurer or produces more than 10% of the insurer’s premium.